Scalia's empty chair and the Senate's path forward

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The late Supreme Court Justice Antonin Scalia established himself and will long be remembered as a towering hero of the conservative movement. The coming months will likely bring more political wrangling and high-minded rhetoric over the nomination of his successor.

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Two key questions stand out. First, can the nomination and confirmation occur before the November presidential and congressional elections? Second, what type of nominee would clear the constitutional hurdle of Senate confirmation?

Scalia leaves an impressive legacy as a tireless and unceasing champion of democracy and the constitutional text. On a personal level, of course, he also leaves an impressive family legacy: his wife Maureen and their nine children and over 30 grandchildren.

To be sure, his relentlessly logical approach and doctrinal consistency dramatically influenced the court, even his liberal colleagues, to look to the text and the plain meaning of provisions under review. His textualist approach steered the court away from judicially crafted multi-part tests that seemed more like statutes than judicial decisions. He imposed more analytical rigor in his approach to legal precedents and outcomes. He all but ended the judicial game of justifying outcomes by sleuthing for obscure snippets of language buried somewhere in the many hundreds of pages of "legislative history." Congress, he said, "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes."

As court watchers have recognized, Scalia was also one of the best writers in the history of the Supreme Court.

On the issue of his successor, history may prove instructive. The most recent occasions when a president nominated and the Senate confirmed a Supreme Court selection in a presidential election year were 1956, 1940 and 1932. In two of these cases, a Republican president named Democrats to the high court: President Eisenhower selected William Brennan and President Hoover selected Benjamin Cardozo.

President Obama could follow this precedent and name a Republican to fill Scalia's seat. Rumor had it that Obama was considering Brian Sandoval, the Republican governor of Nevada. That type of nominee would put the pressure back on Senate Republicans to explain to American voters in their home states why a Republican nominee would be unacceptable. But wary conservatives have been burned too many times by the likes of Justices David Souter and Anthony Kennedy, or even Chief Justice John Roberts.

A Republican nominee would present a special challenge for those Republican senators up for reelection in moderate states, such as Sens. Ron JohnsonRon JohnsonClinton emails dominate Sunday shows GOP senator: Did Clinton email setup play a role in Russian invasions? Sunday shows preview: Bernie soldiers on MORE (R-Wis.), Rob PortmanRob PortmanJuan Williams: Electoral map looks grim for Trump McConnell touts 'Senate squad' in Wes Anderson-style video Liberal super-PAC hits Johnson for supporting Trump MORE (Ohio), Mark KirkMark KirkFunding boost for TSA sails through committee GOP senators propose sending ISIS fighters to Gitmo VA chief 'deeply' regrets if Disney comment offended vets MORE (Ill.), Kelly AyotteKelly AyotteSenators to Obama: Make 'timely' call on Afghan troops levels Overnight Defense: Pentagon chief fears sequestration's return Senate GOP ties Iran sanctions fight to defense bill MORE (N.H.) and Pat Toomey (Pa.).

The confirmation process changed dramatically over the last few decades, as critics of the Warren Court focused attention on the Supreme Court's failure to act as an umpire calling balls and strikes as it became a super-legislature of unaccountable life-tenured judges who substitute their own policy preferences for duly enacted laws — in the words of the late Professor Herbert Wechsler, a "naked power organ."

Ultimately, we see this frustration on both sides of the political aisle in the presidential nomination contest. We see a great divide between voters' wishes and Washington's failure to deliver the relief they seek. That divide is one reason for the rise of Donald TrumpDonald TrumpTrump thought biker rally crowd would resemble ‘I Have a Dream’ speech Weld wins Libertarian nomination for VP Dems to Clinton: Ignore Trump on past scandals MORE (R) and Sen. Bernie SandersBernie SandersTrump thought biker rally crowd would resemble ‘I Have a Dream’ speech Sanders supporter challenges Wyo. delegate allocation Snowden mocks Trump for refusing to debate Sanders MORE (Vt.).

This presents Senate Majority Leader Mitch McConnellMitch McConnellIn House GOP, Ryan endorsement of Trump seen as inevitable McConnell: Trump White House will have ‘constraints’ Nearly 400 House bills stuck in Senate limbo MORE (R-Ky.) and Senate Judiciary Chairman Chuck GrassleyChuck GrassleyClinton email headache is about to get worse Ten senators ask FCC to delay box plan Overnight Cybersecurity: Guccifer plea deal raises questions in Clinton probe MORE (R-Iowa) the perfect opportunity to redeem Washington Republicans with frustrated voters of all persuasions.

The people gave Republicans a majority in the House of Representatives in 2010. They voted House Majority Leader Eric CantorEric CantorJohn Feehery: GOP: Listen to Reince The Trail 2016: Dems struggle for unity Overnight Regulation: Supreme Court rejects GOP redistricting challenge MORE (R-Va.) out of office in a Republican primary. They gave Republicans a Senate majority in 2014. They essentially forced Speaker House John BoehnerJohn BoehnerIn House GOP, Ryan endorsement of Trump seen as inevitable House GOP faces dilemma on spending bills Overnight Finance: Puerto Rico bill clears panel | IRS chief vows to finish term | Bill would require nominees to release tax returns MORE (R-Ohio) to resign last fall.

Voters sent Republicans to Washington to use their rare and historic control of both Houses of Congress to stop President Obama. It is high time now, in the fourth quarter of Obama's presidency, to use this empowerment on the most important issue of our time. McConnell and Grassley deserve credit for recognizing the importance of this moment and the charge they have from voters.

President Obama could choose to follow the examples of Presidents Eisenhower and Hoover by crossing party lines. He could nominate a solid defender of the rule of law and the Constitution, such as Sen. Mike LeeMike LeeMeet the billionaire donor behind Hulk Hogan’s lawsuit against Gawker Overnight Cybersecurity: Guccifer plea deal raises questions in Clinton probe Senate panel delays email privacy vote amid concerns MORE (R-Utah). If so, the Senate would have an easy time confirming Obama's selection. If not, the country will be better off leaving Justice Scalia's chair empty until a worthy successor can be found.

Trotter is a political analyst and attorney. Her views are her own.

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